Allah v. Chambers Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EL-BARSEEM K. ALLAH,

Plaintiff,

Case No. 2:22-cv-21

v. JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

ANNETTE CHAMBERS SMITH, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of two Report and Recommendations

issued by the Magistrate Judge—the first on February 2, 2022 (the “First Report”), and the second

on March 23, 2022 (the “Second Report”). (ECF Nos. 8 and 17, respectively.) Plaintiff timely

objected to both the First Report (ECF No. 11) and the Second Report (ECF No. 18). Additionally,

on February 18, 2022, Plaintiff asked this Court to issue a preliminary injunction against the

Defendants (ECF No. 14).

For the reasons stated herein, the Court ADOPTS IN PART the First Report and

SUSTAINS IN PART Plaintiff’s objections to the First Report; the Court ADOPTS the Second

Report and OVERRULES Plaintiff’s objections to the Second Report; and the Court DENIES

Plaintiff’s motion for a preliminary injunction.

I.

On January 4, 2022, pro se Plaintiff El Barseem K. Allah (“Plaintiff”) filed a civil rights

action against several officials or employees of the Southern Ohio Correctional Facility (“SOCF”),

where he is incarcerated, and the Ohio Department of Rehabilitation and Correction (“ODRC”).

(Compl., ECF Nos. 1-1 and 1-2.) Specifically, Plaintiff alleged multiple constitutional violations,

moving for relief under 42 U.S.C. § 1983. First, Plaintiff asserted that his legal mail was handled

improperly at SOCF when mail from the United States District Court Clerk’s Office was opened

outside his presence and certain contents were allegedly removed (Id., PageID 17), and when a

letter from his attorney was returned because it lacked a “control number,” (Id., PageID 17, 27).

Second, Plaintiff alleged that he had been denied access to SOCF’s grievance procedure to address

his legal mail issues. (Id., PageID 17-20.)

Following the filing of his initial complaint, the Magistrate Judge permitted Plaintiff to

amend his complaint. (First Report, ECF No. 8.) In the amended complaint, referred to as the

“Combined Complaint” throughout this litigation, Plaintiff alleged, in addition to his previous

allegations, that he did not receive a package of books shipped to him when incarcerated at Ross

Correctional Institution (“RCI”), and that during the subsequent grievance procedure at RCI, an

official refused to properly investigate and resolve the matter. (Combined Compl., ECF Nos. 7-1

and 7-2, PageID 135-37.)

Regarding the first two allegations—that is, the legal mail allegation and the denial of

access to SOCF’s grievance procedure—Plaintiff names as defendants the following, in their

official and individual capacities: Annette Chambers Smith, ODRC Director; Ron Erdos, SOCF

Warden; L. Mahlman, SOCF IIS (Institutional Inspector); Lt. Haywood, SOCF Mailroom

Supervisor; and Mr. Oppy, SOCF Unit Manager Administrator. (Compl., ECF No. 1-1, PageID

12, 16, 22.) With respect to the third allegation, Plaintiff names, also in their individual and official

capacities: Donald Morgan, RCI Warden; Todd Diehl, RCI Institutional Inspector; Officer

Harmon, RCI Warehouse Supervisor; Lt. John Doe, RCI Mailroom Supervisor;1 and T. Driesbach

and Benjamin Murphy of the RCI Mailroom. (Combined Compl., ECF Nos. 7-1 and 7-2, PageID

1 Plaintiff has since identified Lt. John Doe as Lt. Benjamin Murphy, an already-named defendant. (ECF No. 16 at

4.)

132, 137.)

On February 9, 2022, pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A, the

Magistrate Judge performed an initial screening of Plaintiff’s Combined Complaint, which led, in

part, to the First Report. (ECF No. 8.) The First Report recommended, inter alia, that Plaintiff be

permitted to proceed with his legal mail claim against Lt. Haywood, SOCF Mailroom Supervisor,

and with his missing package claim against Todd Diehl, Institutional Inspector; Officer Harmon,

RCI Warehouse Supervisor; Lt. John Doe, RCI Mailroom Supervisor; and T. Driesbach and

Benjamin Murphy, of the RCI mailroom (solely in their individual capacities). (ECF No. 8 at 1-

2.) As for Plaintiff’s remaining claims, the First Report recommended their dismissal. (ECF No. 8

at 2.) Plaintiff timely objected to the First Report on February 17, 2022. (ECF No. 11). Defendant

did not file a response to the Objection.

On February 28, 2022, Plaintiff filed a motion for a preliminary injunction asking this

Court to (1) order his transfer from SOCF, a maximum-security prison, to another prison that is

commensurate with Plaintiff’s custody level, such as “TOCI” or “OSP”;2 or (2) restrain Defendants

Lt. Haywood and SOCF mailroom agents from interfering with Plaintiff’s legal mail. (ECF No.

14, PageID 182-83.)

On March 4, 2022, Plaintiff filed another motion for leave to amend the Combined

Complaint, seeking to do the following: (i) name ODRC as a defendant in this action, (ii) include

ODRC Director Annette Chambers-Smith as a defendant with respect to Plaintiff’s legal mail

claim, (iii) name Lt. Benjamin Murphy, RCI Mailroom Supervisor, in place of Lt. John Doe, RCI

Mailroom Supervisor, with regard to the missing package claim, and (iv) add a new claim against

a new defendant, Lt. Felps, SOCF Property Vault Supervisor, involving the taking and destruction

2 The Court presumes that “TOCI” and “OSP” refer to the Toledo Correctional Institution and the Ohio State

Penitentiary, respectively.

of Plaintiff’s personal property, including the destruction of his “fez” or “crown” (Islamic

headdress). (ECF No. 16.) This led to the Magistrate Judge issuing the Second Report. (ECF No.

17.)

The Second Report recommended that this Court grant in part and deny in part Plaintiff’s

request to amend the Combined Complaint. Specifically, the Magistrate Judge recommended the

Court (i) deny Plaintiff’s motion to the extent that it seeks to name ODRC as a defendant, (ii) grant

Plaintiff leave to name Annette Chambers-Smith as a defendant pertaining to the legal mail claim,

(iii) grant Plaintiff leave to replace Lt. John Doe, RCI Mailroom Supervisor with Lt. Benjamin

Murphy, and (iv) deny Plaintiff leave to add the new and unrelated claim against Lt. Felps. (ECF

No. 17 at 1-3.) Plaintiff timely objected to the Second Report on March 31, 2022. (ECF No. 18.)

Defendant did not file a response to this Objection.

II.

If a party objects within the allotted time to a magistrate judge’s report and

recommendation, 28 U.S.C. § 636(b)(1)(C) provides that a district court “shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations

to which objection is made[,]” and that the reviewing court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge.”

When a prisoner proceeding in forma pauperis “seeks redress from a governmental entity

or officer or employee of a governmental entity,” a court is required to review the complaint “as

soon as practicable” and to dismiss it, or any portion of it, that “is frivolous or malicious; fails to

state a claim on which relief may be granted; or seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. 1915A. Here, the Magistrate Judge

found that portions of the Combined Complaint failed to state a claim upon which relief can be

granted. She also determined that Plaintiff’s request to amend the Combined Complaint should be

granted only in part.

Rule 15(a) creates a liberal policy in favor of granting leave to amend and is meant to

“reinforce the principle that cases should be tried on their merits rather than the technicalities of

pleadings.” Inge v. Rock Fin. Corp., 388 F.3d 930, 936 (6th Cir. 2004) (cleaned up). “In the

absence of any apparent or declared reason – such as undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of

amendment, etc. – the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis,

371 U.S. 178, 182 (1962) (citing Fed. R. Civ. P. 15(a)); Riverview Health Inst. LLC v. Med. Mut.

of Ohio, 601 F.3d 505, 520 (6th Cir. 2010) (same).

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set forth “a

short and plain statement of the claim showing that the pleader is entitled to relief.” In reviewing

a complaint, a court must construe it in Plaintiff’s favor, accept all well-pleaded factual allegations

as true, and evaluate whether it contains “enough facts to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556

U.S. 662 (2009) (clarifying the plausibility standard articulated in Twombly). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Additionally, “[p]ro se complaints are to be held ‘to less stringent standards than formal

pleadings drafted by lawyers,’ and should therefore be construed liberally.” Garret v. Belmont

County Sherriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010) (citing Haines v. Kerner, 404 U.S.

519, 520 (1972)). Given that two Reports sit before the Court, each accompanied by Plaintiff’s

objections, this Opinion and Order will begin by addressing the First Report before turning to the

Second Report. Following the Court’s assessment of the Reports, the Court will consider Plaintiff’s

motion seeking a preliminary injunction.

A. Plaintiff’s Objections to the First Report.

In the First Report, the Magistrate Judge issued four recommendations. Plaintiff objects

only to the third, which recommended that this Court deny Plaintiff’s institutional grievance

procedure claim against Defendants Mahlman and Oppy. (ECF No. 11.) Plaintiff argues that this

claim should be allowed to proceed because (i) the named defendants have “acted with deliberate

and malicious indifference and in bad faith in obstructing Plaintiff from seeking or exhausting” his

administrative remedies, (ii) denying this claim will render Plaintiff unable to exhaust his

administrative remedies, thus providing Defendants with the administrative exhaustion defense to

use against his other claims, and (iii) Plaintiff has a First and Fourteenth Amendment right to file

a non-frivolous grievance. (Id.)

After reviewing the Combined Complaint, the First Report, and Plaintiff’s objections to

the First Report—and bearing in mind the liberal construction standard applicable to pro se

litigants—the Court will permit Plaintiff’s institutional grievance procedure claim to go forward.

Under well-established Sixth Circuit precedent, a prisoner has a First Amendment right to file non-

frivolous grievances against prison officials on his own behalf. Herron v. Harrison, 203 F.3d 410,

415 (6th Cir. 2000). This is what Plaintiff seeks to do.

In the Combined Complaint, Plaintiff alleges that, following Defendants’ alleged

interference with his legal mail, Plaintiff sent an informal written complaint to SOCF and a kite to

Defendant Mahlman. (ECF No. 7, PageID 112, 118.) In response to the informal written complaint,

SOCF indicated that Plaintiff could file his grievance using the JPay kiosk. (Id., PageID 118.) And

in response to the kite request, Defendant Mahlman allegedly told Plaintiff that prisoners of his

classification were not permitted to use JPay kiosks; therefore, Plaintiff would be required to file

his grievance using paper forms. (Id., PageID 112, 118.) On or about October 16, 2021, Plaintiff

allegedly contacted Defendant Mahlman via kite requesting a Notice of Grievance (“NOG”) paper

form. (Id., PageID 113.) Plaintiff then alleges that his kite (as well as a subsequent kite) went

unanswered, and that SOCF never provided him with a paper NOG form. (Id., PageID 113-14,

128.)

Plaintiff’s allegations paint a picture in which a prisoner has only two pathways to file his

or her grievance: either by use of a JPay kiosk or via a paper NOG form. As alleged, Plaintiff

cannot access either pathway; SOCF does not permit Plaintiff to use JPay kiosks given his prisoner

classification, and SOCF, despite Plaintiff’s multiple requests, has failed to provide him with an

NOG form. Accepting as true his allegations, Plaintiff is thus left without any means to initiate the

grievance process. Therefore, given that Plaintiff has a First Amendment right to file grievances

against prison officials—a constitutional right that Plaintiff is currently unable to exercise—the

Court sustains Plaintiff’s objections to the First Report.3 Plaintiff may pursue relief on this § 1983

claim.

As for the remaining recommendations and findings in the First Report, the Court adopts

them in their entirety.

B. Plaintiff’s Objection to the Second Report.

Plaintiff raises only one objection to the Second Report. (ECF No. 18.) Specifically,

Plaintiff objects to the Second Report’s recommendation that this Court deny Plaintiff leave to

amend the Combined Complaint to the extent that it seeks to include a new claim against a new

3 Though Plaintiff objected to the First Report on three separate bases, this Court finds merit only in his third basis—

that he has a First Amendment right to file non-frivolous grievances against prison officials on his own behalf.

defendant (Lt. Felps). (Id.)

The Second Report recommended dismissal of this new claim under Rule 20 of the Federal

Rules of Civil Procedure, which provides that “persons . . . may be joined in one action as

defendants if: any right to relief is asserted against them jointly, severally, or in the alternative

with respect to or arising out of the same transaction or occurrence, or series of transactions or

occurrences; and any question of law or fact common to all defendants will arise in the action.”

Fed. R. Civ. P. 20(a)(2)(A)-(B). Under Rule 20, “a plaintiff may not ‘combine into one lawsuit

unrelated claims against different defendants.’” Cage v. Michigan, No. 16-cv-11679, 2018 U.S.

Dist. LEXIS 131190, at *3 (E.D. Mich. Aug. 6, 2018) (quoting Robinson v. Rodarte, 2017 U.S.

Dist. LEXIS 37002, at *4 (E.D. Mich. Feb. 6, 2017), report and recommendation adopted, 2017

U.S. Dist. LEXIS 36622 (E.D. Mich. Mar. 15, 2017)). As explained in Cage, “[m]ultiple claims

against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated

Claim B against Defendant 2. Unrelated claims against different defendants belong in different

suits[.]” Cage, 2018 U.S. Dist. LEXIS 131190, at *3-4.

The Second Report found that the proposed claim against Lt. Felps was unrelated to the

claims raised in the Combined Complaint, thus making joinder inappropriate. (ECF No. 17, at 3-

4.) Plaintiff objects to the Second Report, arguing that his claim against Lt. Felps relates to

Plaintiff’s other claims because it, too, demonstrates Defendants’ “pattern of corrupt activity under

color of law.” (ECF No. 18, PageID 222.)

While the Court is sympathetic to Plaintiff’s position, his objection to the Second Report

is misplaced. Unlike Plaintiff’s legal mail-related claims or his missing package claim, which are

arguably related because they both concern inmate mail service, Plaintiff’s new claim involves a

new defendant and the alleged taking of his personal property, including a “fez” or “crown,” and

the denial of his religious rights under the Free Exercise Clause of the First Amendment. (Mot. to

File Am. Compl., ECF No. 16, PageID 202-06.) This new claim neither arises out of the “same

transaction, occurrence, or series of transactions or occurrences” as Plaintiff’s other claims, nor

does it involve “any question of law or fact common to all defendants.” Fed. R. Civ. P. 20(a)(2)(A)-

(B). Indeed, this is a quintessential example of a plaintiff attempting to join “unrelated Claim B

against Defendant 2” with “Claim A against Defendant 1.” See Cage, 2018 U.S. Dist. LEXIS

131190, at *3-4. As such, Plaintiff’s requested amendment would be futile. Foman, 371 U.S. at

182; Fed. R. Civ. P. 15(a). This Court therefore overrules Plaintiff’s objection to the Second Report

and adopts the Magistrate Judge’s recommendations and findings in their entirety.

III.

The Court now turns to Plaintiff’s motion for a preliminary injunction requesting either a

transfer from SOCF to another correctional facility or an order restraining Defendants Lt.

Haywood and SOCF mailroom agents from interfering with Plaintiff’s legal mail. (ECF 14,

PageID 182-83.)

The decision whether to issue a preliminary injunction under Rule 65 of the Federal Rules

of Civil Procedure falls within the sound discretion of the district court. Friendship Materials, Inc.

v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). Rule 65 of the Federal Rules of Civil

Procedure provides for injunctive relief when a party believes it will suffer immediate and

irreparable injury, loss, or damage. Still, an “injunction is an extraordinary remedy which should

be granted only if the movant carries his or her burden of proving that the circumstances clearly

demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).

In determining whether to issue a preliminary injunction, the Court must balance four

factors: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether

the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of

the injunction would cause substantial harm to others; and (4) whether the public interest would

be served by issuing the injunction. Id. (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.

2000)). “[A] district court is not required to make specific findings concerning each of the four

factors used in determining a motion for preliminary injunction if fewer factors are dispositive of

the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003), abrogated on other grounds

by Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015). Further, when an injunction is

sought by an inmate against state prison officials, the Sixth Circuit has noted that findings of fact

in support of any granted relief are “especially critical” because such an order necessarily “intrudes

significantly into the prerogatives of state correctional officials . . ..” Glover v. Johnson, 855 F.2d

277, 284 (6th Cir. 1988); see also Kendrick v. Bland, 740 F.2d 432, 438, n. 3 (6th Cir. 1984)

(“where state penal institutions are involved, federal courts have a further reason for deference to

the appropriate prison authorities.”).

A. Plaintiff’s First Request: Transfer to Another Correctional Facility.

In his first request, Plaintiff seeks an order requiring his transfer from SOFC, which is a

maximum-security prison, to a different facility that is “commensurate with Plaintiff’s custody

level.” (ECF No. 14, PageID 182-83.)

As a general matter, “prison officials are afforded broad discretion in transferring inmates.”

Rouse v. Caruso, No. 06-CV-10961-DT, 2007 U.S. Dist. LEXIS 103328, at *9 (E.D. Mich. Jan.

24, 2007). And “[a] prisoner has no inherent constitutional right to be housed in a particular

institution or to enjoy a particular security classification.” Beard v. Livesay, 798 F.2d 874, 876

(6th Cir. 1986).

Considering that Plaintiff does not have a constitutional right to be housed at a particular

facility, coupled with the deference afforded to prison authorities, this Court finds it inappropriate

to order his transfer from SOCF to another facility. Additionally, ordering Plaintiff’s transfer to

another facility would contravene the purpose of a preliminary injunction—that is, to preserve the

status quo until a trial on the merits can be held. See Southern Milk Sales, Inc. v. Martin, 924 F.2d

98, 102 (6th Cir. 1991). The status quo in the instant action, as alleged by Plaintiff, is that he has

suffered multiple constitutional violations (though none involving the failure of SOCF to transfer

him to another facility). As for the remedy Plaintiff seeks (i.e., his transfer to another facility), this

goes beyond an injunction maintaining the status quo; Plaintiff seeks an order from this Court

requiring ODRC to transfer Plaintiff from his current facility. Such affirmative relief falls outside

of the purpose of preliminary injunctive relief. See id. Based on these reasons, the Court denies

Plaintiff’s request for emergency injunctive relief.

B. Plaintiff’s Second Request: Restrain Lt. Haywood and Those under His

Supervision from Unconstitutionally Interfering with Plaintiff’s Legal Mail.

In his second request made in his Motion for a Preliminary Injunction, Plaintiff asks the

Court to “restrain[] Defendant Lt. Haywood and SOCF mailroom agents from the practice of

unconstitutional interference with Plaintiff’s legal mail from attorneys or District Courts, Common

Pleas Courts, Municipal or otherwise.” (ECF No. 14, PageID 183.) This request, like Plaintiff’s

first request, is also without merit.

In deciding a preliminary injunction motion, the first factor requires Plaintiff to “establish

a substantial likelihood or probability of success on the merits.” Doe v. The Ohio State Univ., 136

F. Supp. 3d 854, 862 (S.D. Ohio 2016) (citation and alterations omitted). Further, “‘[w]hen a party

seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the

likelihood of success on the merits often will be the determinative factor.’” Libertarian Party of

Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (quoting Connection Distrib. Co. v. Reno, 154

F.3d 281, 288 (6th Cir.1998)).

The Supreme Court has recognized that prisoners have a First Amendment right in

receiving mail from outside sources. Procunier v. Martinez, 416 U.S. 396, 417 (1974). So, too, has

the Sixth Circuit. See Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996) (“The right of a prisoner

to receive materials of a legal nature, which have impact upon or import with respect to that

prisoner’s legal rights and/or matters, is a basic right recognized and afforded protection by the

courts . . . .”); see also Sallier v. Brooks, 343 F.3d 868, 873-74 (6th Cir. 2006) (noting that legal

mail, as opposed to regular mail, is entitled to a heightened level of protection to avoid trammeling

a prisoner’s legal rights, the attorney-client privilege, and a prisoner’s right to access the courts).

It follows, then, “that prison officials risk violating an inmate’s constitutional rights if they open

an incoming letter marked as ‘legal mail’ outside of his presence[.]” Jones v. Caruso, 569 F.3d

258, 267 (6th Cir. 2009) (citing Jenkins v. Huntley, 235 F. App'x 374, 376 (7th Cir. 2007)).

However, even “[w]hen a prison regulation impinges on inmates’ [First Amendment] rights, the

regulation is valid if it is reasonably related to legitimate penological interests.” Horacek v. Lebo,

No. 20-2244, 2021 U.S. App. LEXIS 37672, at *5 (6th Cir. Dec. 20, 2021) (quoting O'Lone v.

Estate of Shabazz, 482 U.S. 342, 349 (1987)).

Plaintiff contends that all of his “communication, filings, notices and instructions from the

Court” in this action were inspected by SOCF outside of his presence, and were “copied, partially

distorted, . . . obscured, and delayed by [Defendant] Lt. Haywood” and those under his supervision.

(Mot. Prelim. Inj., ECF No. 14, PageID 181.) Plaintiff then asserts that this interference is

compromising his ability to pursue this litigation. (Id.) Plaintiff also references the allegations in

the Combined Complaint, which identified two instances where Plaintiff believes Defendant Lt.

Haywood and SOCF mailroom staff unconstitutionally interfered with his “legal mail.” (Id. at

PageID 182; Combined Compl., ECF No. 7, PageID 112-13.) Included in the Combined Complaint

is an attachment indicating that, in at least one instance, SOCF withheld alleged legal mail because

it lacked a “control number.” (ECF No. 7, PageID 122.)

A review of ODRC’s definition of “legal mail” may be helpful. Under the Ohio

Administrative Code, “legal mail” is defined as:

[M]ail addressed to an inmate clearly bearing the return address of an attorney-at-

law, a public service law office, a law school legal clinic, court of law, or the

correctional institution inspection committee that is marked with a valid control

number provided by the department. It may be opened and inspected for contraband

only in the presence of the inmate-addressee. “Legal mail” does not include

postcards from a court of law that indicates fees and/or fines owed by the inmate-

addressee. If mail is received from any of the groups listed in this paragraph without

a valid control number, then it may be treated as a regular, non-legal mail, as set

forth in paragraph (B)(1) of this rule.

OHIO ADMIN. CODE 5120-9-17(B)(2) (2022) (emphasis added). Regular mail, in contrast to legal

mail, does not require the presence of the addressed inmate when being opened, read, or copied.

OHIO ADMIN. CODE 5120-9-17(B)(1) (2022).

Plaintiff’s filings suggest that the alleged “legal mail” was sent without a valid control

number. See ECF No. 7, PageID 122 (indicating correspondence withheld because “[n]o control

number found”). Without a control number, Rule 5120-9-17 permits Defendant Lt. Haywood and

those under his supervision to treat the alleged “legal mail” as regular mail. Given that findings of

fact are “especially critical” when an inmate seeks injunctive relief against prison officials, see

Glover, 855 F.2d at 284, Plaintiff’s failure to demonstrate that the mail at issue falls within the

definition of “legal mail” under Rule 5120-9-17(B)(2) weighs against finding a substantial

likelihood of success on the merits.

As is often the case in the First Amendment context, the likelihood of success on the merits

is the “determinative factor” when adjudicating a motion for preliminary injunction. Libertarian

Party of Ohio, 751 F.3d at 412. This case is no exception; Plaintiff must continue to pursue his

claims through the normal litigation process. The Court thus denies Plaintiff’s second request for

injunctive relief.

IV.

For the foregoing reasons, the Court: ADOPTS IN PART the First Report and SUSTAINS

IN PART Plaintiff’s objections to the First Report; ADOPTS the Second Report and

OVERRULES Plaintiff’s objections to the Second Report; and DENIES Plaintiff’s motion for a

preliminary injunction.

As a result of this Opinion and Order, Plaintiff may proceed with the following claims: (1)

the legal mail claim against Lt. Haywood (SOCF Mailroom Supervisor) and ODRC Director

Annette Chambers-Smith; (2) the institutional grievance procedure claim against Defendants

Mahlman and Oppy; and (3) the missing package claim against Todd Diehl (Institutional

Inspector), Officer Harmon (RCI Warehouse Supervisor), Lt. Benjamin Murphy (RCI Mailroom

Supervisor), and T. Driesbach (in their individual capacities).

Plaintiff is ORDERED to file a Second Combined Complaint setting forth all of his

surviving claims within 30 days of the date of this Opinion and Order.

IT IS SO ORDERED.

9/23/2022 s/Edmund A. Sargus, Jr.

DATED EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE